These proceedings were brought by the applicant in order to prevent the construction of a steel fabrication and distribution workshop, which was proposed to gravely impact the habitat of a threatened species, the Regent Honeyeater (Anthochaera phrygia).

The first respondent in the proceedings was ATB Morton Pty Ltd (ATB) and the second respondent was the Cessnock City Council.

The applicant submitted that a Species Impact Statement (SIS) was required to be submitted with the development application under  s78A(8)(b) of the Environmental Planning and Assessment Act 1979 (“the EPAA”).

The Regent Honeyeater was listed as a critically endangered species by the Scientific Committee under Pt 1 of Sch 1A of the Threatened Species Conservation Act 1995 (TSCA). It is also listed as endangered under s 178 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC”). Evidence was submitted that the proposed development site was located in an area containing a high value habitat for Regent Honeyeaters and the parties agreed that as per the TSCA, the main threats to the Regent Honeyeater are habitat clearance, habitat degradation, and exclusion from areas of otherwise suitable habitat by abundant Noisy Miners, which are an aggressive bird endemic to eastern Australia.

Justice Pepper found in favour of the applicant and agreed with the submission that the proposed development was likely to significantly affect a threatened species so without the SIS, the council was not empowered to grant the development approval.

The court ordered:

That the development application was invalid and has no effect;
the first respondent is restrained from undertaking any development in reliance on the consent;
the first respondent is to pay the applicant’s costs of the hearing unless, within 14 days of the publication of these reasons, a different costs order is sought by notice of motion by any party.